Some Thoughts on Chief Justice Roberts’ Majority Opinion

There has been considerable discussion of why Chief Justice John Roberts led his Supreme Court to rule as it did, and whether Roberts simply pulled a “switch in time.”  I’ll leave that to others.  In this post, this non-lawyer will, in his hubris, simply offer some comments on the Taxing Clause part of Roberts’ Opinion for the Court.  Roberts’ Commerce Clause argument was weakly done, but at least he arrived (somewhat) at the right conclusion.  In a later post, I’ll comment on the Dissent of the Four.  I’ve already commented to some extent on Justice Ruth Bader Ginsburg’s dissenting concurrence; I may have further comments later.  The whole ruling, including Roberts’ Opinion and Opinion for the Court, Justice Ginsburg’s…opinion…, and those of the Four Dissenters and Justice Clarence Thomas can be read here.

This is a long post; if you don’t want to read the whole thing, go to the SUMMARY at the end.

Chief Justice Roberts noted the following general comments in his opinion:

If no enumerated power authorizes Congress to pass a certain law, that law may not be enacted, even if it would not violate any of the express prohibitions in the Bill of Rights or elsewhere in the Constitution.


Congress may also “lay and collect Taxes, Duties, Im­posts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” U. S. Const., Art. I, §8, cl. 1.  Put simply, Con­gress may tax and spend.  This grant gives the Federal Government considerable influence even in areas where it cannot directly regulate.  The Federal Government may enact a tax on an activity that it cannot authorize, forbid, or otherwise control.

The muddled thinking demonstrated by these two passages’ connection to each other, as well as contained within the second passage, early on fatally injures Roberts’ ruling and makes it especially dangerous.

Now let’s look at Roberts’ Taxing Clause argument, which he couches in terms of the combined Tax and Spending Clause, and which he used to uphold the Individual Mandate.  He begins his argument  by laying out his argument for “fairly possible:” the doctrine that if it’s reasonable to read an Act as constitutional, the unconstitutional readings are to be set aside and the Act upheld [cites omitted].

And it is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so.  Justice Story said that 180 years ago: “No court ought, unless the terms of an act rendered it una­voidable, to give a construction to it which should involve a violation, however unintentional, of the constitution.”  Justice Holmes made the same point a century later: “[T]he rule is settled that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act.”

It’s true enough that the will of the Sovereign people, as expressed through their elected representatives, ought to be given the benefit of the doubt in a question of the constitutionality of their will.  That is, in a question of what the people’s representatives enact in the moment and whether that comports with the will of the people as we expressed it when we formed our social compact and approved our Constitution, there should be some bias in favor of the representatives’ will today.  But when a Justice applies “fairly possible,” the first thing he must do is ask himself, “What am I protecting here–individual liberty, or government prerogative?  The capacity of the people to act, or the capacity of their representatives?” The question here, then, becomes whether Roberts too far stretched this doctrine in order to reach his ultimate Individual Mandate upholding opinion: it’s constitutional because it’s possible for it to be within the Congress’ Section 8 taxing powers.  After all, the thing has actually to be reasonable–logical, of reason.

I’ll note at this point, without going into the matter, that Roberts had already agreed in his analysis concerning the applicability of the taxing Anti-Injunction Act, that the fee to be paid for not buying insurance is not a tax, but a penalty.

Roberts summarized the government’s argument for constitutionality under the Taxing Clause:

Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes.  See §5000A(b). That, according to the Government, means the mandate can be regarded as establishing a condition—not owning health insurance—that triggers a tax—the required payment to the IRS.  …it makes going without insurance just another thing the Government taxes, like buying gasoline or earn­ing income.

Roberts then notes

The exaction the Affordable Care Act imposes on those without health insurance looks like a tax in many re­spects.

But to use this as the basis for upholding the Individual Mandate under the Taxing Clause is atrocious logic.  “Looks like a duck” is not at all the same as “is a duck.”  “Looks like” is the stuff of forgeries and, less nefariously, of simulations.  There’s also no logic to equating looks like with is.

He continues his “looks like” pseudo-logic:

The requirement to pay is found in the Internal Revenue Code and enforced by the IRS, which—as we previously explained—must assess and collect it “in the same manner as taxes.”

Aside from bad logic, this is a complete misreading of the Act.  All that’s being done here is the specification of a collection method, using tried and true mechanisms.  This specification in no way implies “it’s a tax.”

It is of course true that the Act describes the payment as a “penalty,” not a “tax.”  But while that label is fatal to the application of the Anti-Injunction Act…it does not determine whether the payment may be viewed as an exercise of Congress’s taxing power.  It is up to Con­gress whether to apply the Anti-Injunction Act to any particular statute, so it makes sense to be guided by Con­gress’s choice of label on that question.  That choice does not, however, control whether an exaction is within Con­gress’s constitutional power to tax.

This is his first broad stretch: either it’s a tax for a constitutional consideration (vis. whether the Court has standing to hear the case at all at this time, and separately whether it comports with the Taxing Clause), or it is not.  Moreover, this consideration ignores the development of the Act: the Congress had explicitly removed tax language from the Act and replaced it with penalty language.  The Congress clearly intended the exaction to be a penalty and not a tax.

And so he comes to his question:

We thus ask whether the shared responsibility payment falls within Congress’s taxing power, “[d]isregarding the designa­tion of the exaction, and viewing its substance and appli­cation” … The same analysis here suggests that the shared re­sponsibility payment may for constitutional purposes be considered a tax, not a penalty….

There are a couple of problems with this, though.  He’s ignoring Congressional intent, as well as the plain language of the Act—which includes far more than mere labels—in reaching for this ability to consider the penalty a tax.  Using this logic, any penalty—the penalty paid for a misdemeanor marijuana possession could be ruled a tax—and so unconstitutional, since that tax is plainly punitive.  The penalty for a Federal DUI offense could be ruled a tax—and so unconstitutional, since that tax is plainly punitive.  And so on.

Furthermore, he’s eliding—and has been all along—the precedent he ultimately sets of allowing a tax on…nothingness.  All of the taxes cited in that “same analysis”—Drexel Furniture, Kurth Ranch, Constantine—and the “taxes” identified as penalties in those cites are levied on doing something, not on doing nothing.

Roberts tried another tack to get to his “fairly possible.”  There’s a matter of degree, as Dole held.  Roberts argued, agreeably to Dole, “The Federal Government may enact a tax on an activity that it cannot authorize, forbid, or otherwise control.”  But if it cannot directly regulate, by what logic is it permitted to indirectly regulate?  The indirect contains a necessary component from direct.  Moreover, if it cannot “authorize, forbid, or otherwise control,” by what logic can it influence?  Influence is an effort to exert a measure of control.  Here is that muddled thinking from his opening Opinion that I mentioned at the start made manifest.

And there’s that unprecedented attempt to “otherwise control” with taxes inactivity, a decision not to participate.

Roberts did address the question of “influence:”

Indeed, “[e]very tax is in some measure regula­tory.  To some extent it interposes an economic impediment to the activity taxed as compared with others not taxed.”

True enough, as I’ve argued elsewhere on the question of using taxes for social engineering.  However, this just makes it imperative to look at Congress’ motive for exacting the fee.  In the PPACA, the fee exaction is explicitly to “influence” the exactee to buy insurance; it is not at all the taxing purpose of raising money, here to pay the premium increment on everyone (a stretch to allow this into the “general Welfare,” but arguendo, let’s allow it for now) that results from decisions not to participate in the commerce.  This is plain from the fee’s design: in order to avoid being a punitive tax (Drexel an Dole), it was explicitly set to be low and o max out at a low level—a level incapable of making up the premium increase reduced product demand.

He took yet another path in his attempt to seek out constitutionality.  With this as his background

While the individual mandate clearly aims to induce the purchase of health insurance, it need not be read to declare that failing to do so is unlawful.  Neither the Act nor any other law attaches negative legal consequences to not buying health insur­ance, beyond requiring a payment to the IRS.  The Gov­ernment agrees with that reading, confirming that if someone chooses to pay rather than obtain health insur­ance, they have fully complied with the law.

he argued

That Congress apparently regards such extensive failure to comply with the mandate as tolerable suggests that Congress did not think it was creating four million outlaws.

This is both irrelevant and meaningless.  According to a recent DDB Worldwide Communications Group study published this year, 7% of Americans surveyed were willing to admit that they “fudged” their taxes.  When Congress made tax cheating unlawful all those years ago, did they think that failure to comply tolerable, as they apparently were creating today’s nearly 10 million tax outlaws?  Plainly, the negative legal consequences for noncompliance here are not too great.

He tried another shot:

Congress’s use of the Taxing Clause to encourage buying something is, by contrast, not new.  Tax incentives already promote, for example, purchasing homes and professional educa­tions.

These are reductions in taxes for altering existing behavior, though, not impositions of whole new taxes for initiating heretofore nonexistent behavior.  Roberts’ ruling inserts a brand new power into the Constitution, and without benefit of the People agreeing to the Amendment under the Constitution’s Article V procedure: Roberts has created out of whole cloth a Federal government ability to tax inactivity.  And, as the Wall Street Journal put it, went to the extremity of “rewriting the plain text of a law” to do it.

All of this, though, simply demonstrates the fatal weakness of the “fairly possible” doctrine: it’s an excuse to uphold a law as constitutional and to avoid the difficulty of investigating the law itself and determining its legitimacy or illegitimacy.  Take two readings of a law: one based on its plain language and so is illegitimate and one based on the most tenuous link to an Enumerated Power, and that most feeble tie must be the one used.  And as I’ll show later on, that link isn’t actually a requirement, either, in Roberts’ mind.

What’s most troubling about Roberts’ argument, though, is that elision I mentioned above.  In every instance he cited, in every example he offered—every one—what was being taxed was an action.  He even argued in striking down the Commerce Clause question that inaction is beyond the government’s reach for regulation.  Surely, if government cannot regulate inaction, it cannot tax it, either, especially when the purpose of the exaction is to create action where inaction lies.

Then he cited, approvingly, this amazing argument:

The “ques­tion of the constitutionality of action taken by Congress does not depend on recitals of the power which it under­takes to exercise.”

Of course it does.  This is the whole concept of a government of limited, enumerated powers.  If the power under which the Federal government wishes to do something cannot be identified—and it’s a short list, after all, or used to be—then by definition, the government cannot do that thing.

Here, finally, he addressed the concept of taxing inaction:

There may, however, be a more fundamental objection to a tax on those who lack health insurance.  Even if only a tax, the payment under §5000A(b) remains a burden that the Federal Government imposes for an omission, not an act.  If it is troubling to interpret the Commerce Clause as authorizing Congress to regulate those who abstain from commerce, perhaps it should be similarly troubling to permit Congress to impose a tax for not doing something.

And he answered the question in the most amazing manner:

First, and most importantly, it is abundantly clear the Constitution does not guarantee that individuals may avoid taxation through inactivity.  A capitation, after all, is a tax that every­one must pay simply for existing, and capitations are expressly contemplated by the Constitution.

But the Constitution does, most assuredly, not permit the taxation of inactivity.  Not only is this not an enumerated power—and so forbidden the Congress—there are only three purposes for which taxation is permissible under our Constitution: to raise money with which to pay our debts, to see to our national defense, and for the general welfare as defined by the Enumerated Powers.  Forcing an inaction into activity is not among them.

As to his capitation taxes, they also are expressly and harshly limited by the Constitution.  The capitation question is simply another non sequitur.

On Roberts’ argument vis-à-vis the Commerce Clause, I just note this.

The path of our Com­merce Clause decisions has not always run smooth, see United States v. Lopez, 514 U. S. 549, 552–559 (1995), but it is now well established that Congress has broad author­ity under the Clause.

He also noted, in a summary of a part of the government’s argument

Under Wickard it is within Congress’s power to regulate the market for wheat by supporting its price.

Here was his first golden opportunity to be a judicially conservative jurist.  He could have pointed out the errors of Jones & Laughlin, Wickard, and Darby, et al.,  and reversed them in his Commerce Clause argument.  There is, after all, no place in the Constitution, except an intimidated Roosevelt Court put it there, for government to control prices, as Wickard started allowing.  This an abuse of the Constitution’s permission to regularize—to ensure that all the States are playing by the same commerce rules—commerce among the several States.  I’ll have more to say on this when I get to the Four Dissenters’ dissent.

His second golden opportunity was with the Taxing Clause question.  He could simply have waved the BS flag at it.  Instead, Roberts chose to be a judicial activist of the most dangerous sort.


As Roberts pointed out at the outset, “If no enumerated power authorizes Congress to pass a certain law, that law may not be enacted…,” yet in his ruling he authorized exactly that.  He achieved this through a blatant abuse of the Court’s self-imposed doctrine of “fairly possible,” when he eschewed asking the necessarily prior questions of  “What am I protecting here—individual liberty, or government prerogative?  The capacity of the people to act, or the capacity of their representatives?”

In his search for “possible,” [sic] he applied the false logic of something looking like a duck having to be, perforce, a duck: he wrote that the exaction “looks like a tax in many respects,” while ignoring the fact that it not only looks like a penalty in most respects, the Act made it explicitly so.  He did it by rewriting the Act to suit the judicial convenience of that search, finding that although the Act characterized the exaction as a penalty (not merely labeling it such) and that tax language explicitly had been removed and replaced with penalty language as the Act was being developed, what the Act meant to say was that it was a tax.  As an indication of just how confused Roberts’ thinking was, he applied the false logic of the exaction not being a tax for the constitutional consideration of the Court’s standing to hear the case, yet being a tax for the constitutional consideration of whether the Court, with a sufficiently diligent search for an excuse, can find one for upholding it somehow, somewhere.

He achieved this through his most amazing claim:

The “ques­tion of the constitutionality of action taken by Congress does not depend on recitals of the power which it under­takes to exercise.”

This completely eliminates any pretense of enumeration and limitations heretofore made clear by the existence of the Enumerated Powers—and judicial precedent extending all the way back to Chief Justice John Marshall and McCulloch.

He ignored the wisdom of Chief Justice William Howard Taft, writing on another Taxing and Spending Clause question [emphasis mine]:

Extraordinary conditions may call for extraordinary remedies. But the argument necessarily stops short of an attempt to justify action which lies outside the sphere of constitutional authority. Extraordinary conditions do not create or enlarge constitutional power.

and [again, emphasis mine]

It is the high duty and function of this court…to decline to recognize or enforce seeming laws of Congress, dealing with subjects not entrusted to Congress, but left or committed by the supreme law of the land to the control of the States.  We cannot avoid the duty even though it require us to refuse to give effect to legislation designed to promote the highest good.  The good sought in unconstitutional legislation is an insidious feature because it leads citizens and legislators of good purpose to promote it without thought of the serious breach it will make in the ark of our covenant or the harm which will come from breaking down recognized standards.

The results are two terrible things: a law of good purpose (i.e., well intentioned, however poorly crafted) is upheld without thought of the serious breach.  Worse, a precedent that is a terrible threat to our liberty—to what it means to be an American—has been set: now the Federal government can tax, not only everything that moves, but everything that is stationary, as well.  And for any governmental purpose.

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